Rommal Whitefoot v. Bass Pro Outdoor World LP

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 18-022201

Employee: Rommal Whitefoot

Employer: Bass Pro Outdoor World LP

Insurer: Safety National Casualty

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The employee's application for review alleges that the ALJ's award is illegal because the employee received no notice of the February 1, 2022 final hearing until February 4, 2022, three days after the hearing.

On July 13, 2020, ALJ Kevin Thomas' approved Jason M. Krebs' Motion for Leave to Withdraw as the attorney for the employee. No party disputes that since that date the employee has been unrepresented by counsel. Section 287.520 .2 provides, in relevant part, "any notices required to be sent to an employee not represented by counsel shall be sent by registered or certified mail to the last known address of the employee unless the employee consents to receive notices by electronic means."

The Division's December 1, 2021 Notice of Hearing (Notice) informed the parties of a hearing scheduled at 9:00 a.m. on Tuesday, February 1, 2022. ${ }^{1}$ The Notice listed the employee's address as 844 Bilbo Cartee Rd, Cedarbluff, MS 39741-8004. The employee does not dispute that this was his last known address as of December 1, 2021. We note that this address also matches the address listed on the employee's application for review. The Notice expressly stated that it was "being sent to the claimant by certified mail." The United States Postal Service (USPS) certified mail tracking number, 70142120000342453914 was listed above the claimant's address on the Notice.

Section 536.070(6) provides, in pertinent part, "Agencies shall take official notice of all matters of which the courts take judicial notice." Courts have held that judicial notice may be taken of the information on a government website because this information is "not subject to reasonable dispute" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Ananias v. Stratton, 2012 U. S. Dist. LEXIS 57817, at 6 (C.D. III. April 25, 2012). See also Jeffrey Bellin \& Andrew Guthrie Ferguson, Trial by Google: Judicial Notice in the Information Age, 108 SW. U.L. Rev. 1137, 1160 (2014).

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[^0]: ${ }^{1}$ Id., Exhibit "D".

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Injury No.: 18-022201

We take administrative notice of official USPS tracking results², which confirm that the Division's Notice arrived at the Cedarbluff Post Office on December 6, 2021. Official USPS tracking results further document attempted delivery of the Notice that day and show that delivery was unsuccessful because no authorized recipient was available at the employee's address. The USPS thereafter left a notice of the mailing at the employee's address. USPS tracking records include a final update stating an individual picked up the Division's Notice at the Cedarbluff Post Office on December 14, 2021, at 11:03 a.m.

Based on the Division's hearing Notice, a copy of which the employee attached to his application for review, in conjunction with official USPS tracking results, we find that the Division complied with statutory notice requirements by sending its Notice to the employee at his last known address by certified mail. The Division has no duty to confirm receipt of official notices sent by registered or certified mail to an unrepresented employee. We note, however, that USPS tracking results further establish that the employee received actual notice of the Division's February 1, 2022 hearing on December 14, 2021, ten weeks in advance of the hearing date. Based on the above findings, we find no merit in the employee's claim that the ALJ based his May 4, 2022 award on an unlawful hearing.

**Decision**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Kevin A. Elmer dated May 4, 2022 is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, and this 25TH day of October 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

Kathryn Swan, Member

Attest:

*Kurt W. Hepp*

Secretary

2 https://tools.usps.com/go/TrackConfirmAction

Employee: Rommal Whitefoot

Injury No. 18-022201

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Bass Pro Outdoor World LP

Insurer: Safety National Casualty

Additional Party: Missouri Second Injury Fund

Hearing Date: February 1, 2022

Checked by: KAE

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: March 29, 2018
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? The employee submitted no evidence.
7. Did employer receive proper notice? The employee submitted no evidence.
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? The employee submitted no evidence.
10. Was employer insured by above insurer? The employee submitted no evidence.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee submitted no evidence.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: None
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A
17. Value necessary medical aid not furnished by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rommel Whitefoot

1. Employee's average weekly wages: The employee submitted no evidence.
2. Weekly compensation rate: Undetermined
3. Method wages computation: N/A

1. Amount of compensation payable: None
2. Second Injury Fund liability: None

TOTAL: $\ 0.00

1. Future requirements awarded: None

Employee: Rommal Whitefoot

Injury No. 18-022201

Dependents: N/A

Employer: Bass Pro Outdoor World LP

Insurer: Safety National Casualty

Additional Party: Missouri Second Injury Fund

Hearing Date: February 1, 2022

Checked by: KAE

A final hearing was held on February 1, 2022, before the undersigned Administrative Law Judge. Employee, Rommal Whitefoot, failed to appear. Employer and Insurer was present by and through their attorney, Shari Lockhart. The Missouri Second Injury Fund was present by and through its attorney, Assistant Attorney General Morgan Kirkpatrick.

At the hearing and on the record, the Court took judicial notice of the entire Division file, including all motions and filings submitted by Employee. Specifically, the Court took judicial notice of Employee's letter dated November 4, 2021, made in response to Employer's Request for Final Hearing. Specifically, the Court noted Employee stated he was unable to attend any court date set, specifically if set in Missouri, as he was currently living in Mississippi. As such, the Court noted there was no indication Employee would appear, regardless of when a final hearing, or any other hearing, was set.

Further, the Court noted Employee made no request to appear virtually via Zoom, Webex, or phone. Employer/Insurer's Counsel, Ms. Lockhart, indicated, even if such request by Claimant had been made, Employer/Insurer would have objected as there is no way to ensure it was really Claimant appearing virtually, as the father of the adult Claimant had been the primary communicator, rather than Claimant himself. The past communications of the Claimant and his father have been such that this court would demand proof of identity of the individual pursuing the claim.

The Court noted Employee was fully aware of the February 1, 2022 final hearing date as Employee referenced this date in multiple motions and correspondence filed with the Court, including the November 4, 2021 letter referenced above.

Assistant Attorney General Kirkpatrick noted, on the record, the Missouri Second Injury Fund was not served, nor did it receive, any of the various motion filed by Employee. The Court notes said motions do not pertain to the Missouri Second Injury Fund, and as such, no response is required by the Fund.

Lastly, the Court considered all motions and requests filed by Employee; made part of the record as indicated above. The Court finds all Motions to be out of line and without merit. As such, all are overruled.

It is well established under Missouri law that a workers' compensation employee/claimant bears the burden of proof to show his injury was compensable. Anttila v. Treasurer of State, 632 S.W.3d 502, 509 (Mo. App. S.D. 2021), Firmand v. University of Missouri, 628 S.W.3d 434, 436 (Mo. App. S.D. 2021), and Shipley v. Office of Administration, 624 S.W.3d 369, 371 (Mo. App. S.D. 2020). As recent as November 23, 2021, Missouri appellate courts have recognized this burden is made up of two, distinct burdens: the burden of persuasion and the burden of production. See generally Chambers v. Treasurer of Missouri, No. SD 37036, 2021 WL 5475593 (Mo. App. S.D. Nov. 2021). Furthermore, pursuant to 8 CSR 2.010, 9(D), attendance at any Workers' Compensation setting is mandatory.

Here, Employee very specifically indicated, in his November 4, 2021 correspondence, he had no intention of appearing, and in fact, did not appear, despite having ample notice of the date of the final hearing. As such, Employee did not, nor could he, meet his burden to prove the alleged injury was compensable.

As Employee failed to appear and present evidence to prove his claim, the claim in Injury Number 18-022201 is denied this date.

I certify that on May 042022

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By: $\frac{\text { Marmi. Darson }}{\text { Marson }}$


Made by: $\frac{\text { Kevin A. Elmer }}{\text { Kevin A. Elmer }}$

Administrative Law Judge

Division of Workers' Compensation